Warner v B & M Europe Ltd (Practice and Procedure: Review)

A reconsideration application may properly be dismissed where the party’s representative knew of the hearing but did not participate, and where reconsideration could not realistically alter the original result.

A claim for knowingly helping an Equality Act contravention requires the alleged helper to have the necessary knowledge. A claim founded on a decision of another person cannot succeed where that knowledge arose only after the decision had been made.

Immunity conferred on an international organisation for its official activities was compatible with article 6 of the European Convention on Human Rights. In any event, article 6 was not engaged where the immunity gave effect to the United Kingdom’s international obligations.

The claimant, an IT consultant, brought race-discrimination proceedings against the European Patent Office (EPO) and a claim against B & M Europe Ltd under sections 111 and 112 of the Equality Act 2010.

The Employment Tribunal revoked a default judgment against the EPO and dismissed the claim against it on reconsideration, holding that the EPO had immunity under the European Patent Organisation (Immunities and Privileges) Order 1978. A separate Tribunal decision struck out the claim against B & M. It later refused reconsideration after finding that the claimant’s representative had known of, but failed to attend, the telephone hearing.

The claimant appealed both reconsideration decisions. The central questions were whether the B & M claim could have survived the strike-out hearing and whether EPO immunity was incompatible with article 6 of the Convention.

1. Both appeals were dismissed.

2. The Employment Judge was entitled to find that the claimant’s representative was aware of the telephone hearing and chose not to take part. That factual finding was supported by the evidence and was not perverse. The reconsideration application could therefore be rejected on that basis.

3. There was independently no real prospect that reconsideration would alter the strike-out of the claim against B & M. The claimant’s own evidence before Employment Judge Trickey was that an EPO manager ended the engagement and that B & M did not know what had happened. B & M therefore lacked the knowledge necessary for liability under section 112 of the Equality Act 2010. The knowledge arose only after the alleged discriminatory dismissal. No separate case under section 111 had been advanced.

4. The immunity in article 5(1) of the European Patent Organisation (Immunities and Privileges) Order 1978 applied because the claimant’s IT engagement fell within the EPO’s official activities. The immunity of an international organisation of this kind was compatible with article 6(1) of the European Convention on Human Rights, as Klausecker v Germany directly indicated.

5. Alternatively, article 6 was not engaged because article 5(1) gave effect to the United Kingdom’s international obligations under article 8 of the European Patent Convention 1973. That materially distinguished Benkharbouche v Sudan, where the Court of Appeal held that no international-law rule required the state immunity relied upon.

• Employment Appeal Tribunal: The claimant’s two appeals were heard together. The appeal from the EPO reconsideration decision and the appeal from the B & M reconsideration decision were both dismissed.
• Employment Tribunal (Employment Judge Reed): By a judgment promulgated on 3 July 2015, the Judge dismissed reconsideration of the order striking out the sections 111 and 112 claim against B & M.
• Employment Tribunal (Employment Judge Trickey): By a judgment promulgated on 2 September 2014, the Judge confirmed on reconsideration that the EPO claim was barred by immunity under the European Patent Organisation (Immunities and Privileges) Order 1978.